Suit over Missouri execution drug draws scrutiny

ST. LOUIS—A ruling temporarily prohibiting a compounding pharmacy from selling execution drugs to Missouri could have implications across the country, a legal expert said Thursday.

U.S. District Judge Terence Kern in Tulsa, Okla., issued a temporary restraining order Wednesday in a suit filed on behalf of condemned Missouri inmate Michael Taylor. The ruling prohibits Tulsa-based Apothecary Shoppe from selling pentobarbital to the Missouri Department of Corrections. A hearing on the case is next week.

Taylor faces execution on Feb. 26, and Gov. Jay Nixon indicated that the state has enough pentobarbital to carry it out. Nixon, speaking at a news conference on Thursday, did not directly answer "yes" or "no" when asked about availability of the execution drug but said, "In order to complete that ultimate responsibility, that's necessary. The Department of Corrections is prepared to carry out that execution."

The corrections department and the Apothecary Shoppe did not respond to multiple phone and email messages left by The Associated Press.

Fordham Law School professor Deborah Denno said those on both sides of the death penalty debate are watching developments in the lawsuit.

"I think this is going to spur attorneys in other states to file similar kinds of claims," Denno said.

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She also questioned whether legal concerns and bad publicity could compel compounding pharmacies to opt out of making and selling execution drugs.

"You really wonder why a compounding pharmacy would get involved," Denno said. "It's not a lucrative market, and it's a market that can really hurt you in terms of your reputation."

Richard Dieter, executive director of the Death Penalty Information Center, wasn't as certain about the ruling's broader impact, noting that a temporary restraining order "is just a preliminary ruling saying that one party has a lot more to lose than the other, so let's put things on hold until the merits can get resolved."

Execution drugs have become increasingly hard to obtain as major drug makers stopped selling pharmaceuticals for lethal purposes. Many states, like Missouri, have turned to compounding pharmacies—how many isn't known for sure, Dieter said, because so many states are secretive about their procurement methods.

Compounding pharmacies manufacture drugs for individual clients. They don't face the same oversight of larger drug companies, such as regulation by the U.S. Food and Drug Administration.

Death penalty opponents say the cloak of secrecy and lack of scrutiny raise concerns about whether the inmate could suffer during the execution process.

Missouri officials refuse to say where the state obtains its execution drug, but Taylor's attorneys say the Apothecary Shoppe is the provider. Attorneys for Herbert Smulls, executed last month, said the same. The Apothecary Shoppe has declined to confirm nor deny that.

The suit filed on Taylor's behalf is unique in going after the drug maker, not the state performing the execution. It also is rare because it wasn't filed in the state where the execution occurs.

Paul DeMuro, one of the attorneys for Taylor, declined to speculate on the impact of the case.

"I don't know," he said. "It might depend on the outcome of this proceeding."

Public defender Madeline Cohen, an attorney for Oklahoma death row inmate Charles Warner, said her office is deciding whether to file a suit similar to Taylor's and is "watching all the developments very closely." Warner is scheduled to die March 27. Like Missouri, the Oklahoma Department of Corrections does not disclose the source of its execution drug.

"The thing that's really disturbing is that states are taking lives in experimental procedures under conditions of extreme secrecy," Cohen said.

Attorney John Carroll, who represents Texas death row inmate Ray Jasper, also is watching the case but declined to say if he would file a similar suit. Jasper is scheduled to die March 19.

Taylor and Roderick Nunley abducted 15-year-old Ann Harrison from a Kansas City school bus stop in 1989, then raped and killed her. Nunley, 48, is also on death row.

Taylor, 47, was hours away from execution in 2006 when the U.S. Supreme Court granted a stay over concerns about whether the state's three-drug method could violate the constitutional guarantee against cruel and unusual punishment.

Taylor's lawsuit raises the same issue, arguing that the pentobarbital would likely cause Taylor "severe, unnecessary, lingering and ultimately inhumane pain." It also alleges that the Apothecary Shoppe violates federal law each time it delivers the drug across state lines to Missouri corrections officials. A spokeswoman for the pharmacy said last month that it does not violate any laws.

Missouri Corrections Department director George Lombardi told a legislative panel on Monday that the state pays $8,000 in cash for pentobarbital, but he did not name the provider.

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